초록 close

The discussion of Hans Kelsen’s Pure Theory of Law among mainstream legal theorists is quite commonplace in Korea. What has Korean legal philosophy gained, and what has it lost through its communion with Kelsen? With this question in mind, I will, at least, roughly retrace the steps made in modern Korean legal history and consider what kind of impact Kelsen’s theory of law has made in several crucial moments. I will reflect upon three moments: the adaptation of Kelsen’s Pure theory of Law immediately after the liberation from Japanese occupation, Kelsen’s comments on the actions taken by UN Security Council in Korean War, the reference of the Korean Prosecution to Kelsen’s Grundnorm and the so-called ‘successful coup’ in the accused 1995 high treason and murder/attempted murder in the May 18th related case. Furthermore, with this background in place, I will venture to discuss each of these questions. First, whether or not the Pure Theory of Law has been conducive to the scientizing of jurisprudence in Korea, secondly, whether or not it has contributed to constitutional democracy. Thirdly, whether or not it is a theory that aids in solving hard cases in the court decisions, fourthly, whether or not it is a theory which helps us view law in light of the new changes brought about by globalization, fifthly,whether or not it is a theory which corresponds to our experiences and natural practices in society. Finally, without regard to whether the answers to these questions are positive or not, we will keep these issues in mind and consider how we can overcome or go beyond Kelsen’s theory.